What's the Hurry?

What's the Hurry?

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For more than a century, New Zealand governments have periodically put the House of Representatives into “urgency”. As its name suggests, urgency is a device by which legislation can be passed in a hurry if there is a genuine need to do so. But it also serves a more generic function. Urgency is used to extend the House’s sitting hours from time to time, so that the government of the day can get more done during its term in office than it would otherwise have time to. In short, urgency is a technique for prioritising government business in the House over other activities that we expect MPs to perform (both inside and outside Parliament).

What’s the Hurry is the first in-depth study of the use of urgency in New Zealand. The authors document every use of urgency over a 24-year period (1987−2010) and analyse how, when, how much and why urgency is used. They conclude that, while some uses of urgency are relatively unproblematic, others are deeply troubling—particularly when urgency is used to avoid select committee scrutiny of legislation. They commend Parliament’s Standing Orders Committee for recommending changes to the regulatory framework  governing urgency but wonder whether those changes go far enough.

“…the most comprehensive in-depth study of an aspect of New Zealand parliamentary procedure that I have seen.” —David McGee QC

From: What's the Hurry?, by Claudia Geiringer, Polly Higbee and Elizabeth McLeay

Introduction

Between 1987 and 2010, the New Zealand House of Representatives went into urgency or extraordinary urgency 230 times. It accorded urgency to more than 1600 bills – many of them on more than one occasion. Close to half the legislation introduced to the House between 1987 and 2010 had urgency accorded to it at some stage.

“Urgency motions” have been a prevalent feature of New Zealand parliamentary practice for more than a hundred years, employed by governments on both sides of the House to exert control over the legislative timetable. Urgency motions (put forward by members of the government and passed by a simple majority vote) force the House of Representatives to sit for longer hours and enable the executive government to dictate the business that the House will consider during those hours.

Governments put the House into urgency because urgency enables them to pass more legislation, more quickly. Sometimes, they use it because they believe (or they think that the public will believe) that a particular law needs to be passed in a hurry. For example, perhaps a bill responds to a civil emergency, or reverses an unexpected court decision, or fixes a mistake that has been found in earlier legislation. Sometimes, though, governments use urgency simply because they are frustrated with the pace at which their legislation is progressing through the House. Understandably perhaps, governments want to have something to show for their time in office. They see urgency as a legitimate and time-honoured mechanism to enable them to achieve more, during their term in government, than they might otherwise be able to achieve.

Undoubtedly, there are times when we would wish our governments to be able to act fast. But urgency comes at a cost. When urgency is taken, the public can be left with a sense that Parliament is not following its own rules and that legislation is not receiving proper scrutiny. In some instances, that concern is not borne out by closer analysis – putting the House into urgency does not necessarily reduce the amount (or quality) of scrutiny and deliberation that particular bills receive as they proceed through the legislative process. In other instances, though, there is real reason for disquiet. Urgency can be used (and sometimes is used) to dispense with certain mandated pauses (or “stand-down periods”) that have been inserted between the different stages of legislative deliberation. These are there to ensure that bills proceed through the system at a leisurely pace, with adequate opportunities for reflection and informed debate. Of even more concern, urgency can be used (and sometimes is used) to dispense with the select committee stage of legislative consideration in its entirety. When that happens, opportunities for policy deliberation, legislative scrutiny and public input are all significantly reduced.

For these reasons, the use of urgency is an issue of major public importance with significant implications for the quality and integrity of New Zealand’s law-making processes, as well as for public confidence in our democratic institutions. Urgency motions can be a means to foreshorten democratic deliberation – both amongst parliamentarians and within the wider community. Even when urgency does not have that effect, the damage to the reputation of Parliament, flowing from the public perception that legislative processes have been undermined, is real.

Perhaps because of a perception (borne out by this study) that the 2008–2011 Parliament was freer in its use of urgency than were other parliaments in recent times, public expressions of unease about the use of urgency appear to be on the rise. In 2011, over one third of submitters to the Standing Orders Committee’s tri-annual review of the Standing Orders of the House of Representatives (the House’s self-imposed procedural rules) sought amendments to the regulatory framework governing the use of urgency.1 Also in 2011, right-wing political blogger David Farrar teamed up with Labour MP Grant Robertson to present statistics on the use of urgency during the previous decade. They both expressed particular concern about an apparent increase (again, confirmed by this study) in the use of urgency to bypass select committee scrutiny during the 2008–2011 term of Parliament.2 Even the mainstream media – sometimes slow to report on parliamentary procedure – have been moved to occasional expressions of concern about the use of urgency during the last few years.3

Surprisingly, though, there has been little in the way of in-depth study of the use of urgency.4 Indeed, although commentators have expressed dismay over the years about its use, there have been limited data published on the topic.5 The research reported here aims to fill that gap in our knowledge by providing a contextualised account of the use of urgency by the New Zealand Parliament, with a particular focus on the years 1987–2010. Our research findings identify trends in the use of urgency and the constraints on its use. We comment on the constitutional implications of the use of these powers and suggest reforms to the regulatory matrix in which they occur. Questions that this study is concerned with include:

• What exactly is urgency and what are its effects on the legislative process?

• Why do governments use urgency? What motivates or drives them?

• How much is it used and what constrains its use?

• In particular, what effect did the introduction of mixed-member proportional representation (MMP) have on the use of urgency? Do the multi-party governments that typify the MMP Parliament use urgency less than the single-party majority governments that were the norm under the first-past-the-post electoral system? If so, how might we account for this?

• If governments feel that they need more time to progress their legislative programmes in the House, is urgency the best method of achieving this? If not, what other means might be available?

• Should we be worried about the use of urgency and, if so, why?

• How robust is the regulatory framework that governs the use of urgency? Should it be amended and, if so, how?

At its simplest, this book is an in-depth empirical examination of an important but under-explored aspect of New Zealand’s parliamentary procedure that aims to advance understanding of, and promote debate on, a matter of significant public concern. Additionally, this book offers a window onto wider themes in New Zealand politics and legislative practice. One of these relates to a broader debate about how parliamentary time is best apportioned. The urgency motion is only one of an array of tools – albeit one of the most dramatic and controversial – that is available to New Zealand governments seeking to engineer more time in the House to progress their legislative business. This study into the use of urgency thus provides a lens through which to examine broader underlying questions about the way the House manages and distributes the scarce resource of parliamentary time. How easy (or difficult) should it be for the executive to exert control over the legislative timetable? Are the House’s regular sitting hours insufficient? Could the House make better use of the hours that are available to it? Does the House spend too much time scrutinising particular legislative proposals? Or not enough? What other activities do we expect our MPs to perform, and how much time should they be devoting to them? Do we want to encourage more legislating on the part of our governments? Or discourage it? If more time is needed to devote to Parliament’s legislative business, is the periodic use of urgency motions really the best way of finding that time?

Although we seek to locate our discussion of the use of urgency within the parameters of this broader set of questions, we do not presume to offer definitive answers to all of them. Ultimately, ours is a focused examination of one aspect of New Zealand parliamentary procedure. Nevertheless, we hope and expect that the study will offer the reader insights into the terms of the wider-ranging and multi-faceted debate over parliamentary time.

On yet another level, this book can be viewed as a window onto power relationships between the executive and the legislature within New Zealand’s system of parliamentary government. The urgency motion is a mechanism by which the political executive exerts dominance over the legislature by prioritising its own business over the other activities that MPs perform (whether inside or outside the House) and, in some cases, by reducing the level of scrutiny and deliberation that particular bills receive. For that reason, the use of urgency can be seen as part of a wider narrative about executive dominance and parliamentary control in New Zealand politics – a narrative that is as old as Parliament itself.6

Our study begins during the period of “executive paradise” that characterised the pre-MMP era of New Zealand government.7 Between 1935 and 1994, New Zealand’s unicameral Parliament was commanded by a series of single-party majority governments, able to exert near total control of the House through absolute parliamentary majorities, dominated by powerful Cabinets and a robust system of party discipline. In 1992, writing as this era drew to an end, Sir Geoffrey Palmer identified the “central feature of the New Zealand system of government” as being “a concentration of power in the central government”.8

MMP changed the terms of engagement. Between 1994 (two years before MMP was introduced) and 2010 (the final year of our study), no one party achieved an absolute majority in the House of Representatives. Instead, the larger parties (National and Labour) had to collaborate with minor parties in order to maintain the confidence of the House and to achieve the requisite support for particular legislative proposals. In the language sometimes adopted in the political science literature, under MMP, minor parties have the potential to act as “veto players”, able to block the adoption of particular policies or, in the case of urgency, particular procedural strategies.9

This book can be viewed as a case study of the extent to which, in practice, minor parties exert this veto power. Our research shows that, following the introduction of MMP, minor parties exerted a significant effect on the ability of the major parties to rely on urgency to push their legislative programmes through the House. On the other hand, the effect of MMP on the use of urgency was not consistent. In some cases, minor parties did not want, or did not feel able, to exercise their “veto” power in deciding whether or not to support urgency motions in the House. The reasons why that might be so are explored in the account that follows.10

In short, the use of urgency is part of a wider story of a small parliament, historically dominated by strong executives, and lacking the checks and balances (such as bicameralism, federalism or a judicially enforced higher-law constitution) that are common in many other jurisdictions. Against that background, the ultimate question for this study was whether the institutional constraints on the use of urgency (and, most especially, the multi-party make-up of the House that typifies MMP politics) are sufficient to control its abuse. The conclusion that we reach is that those constraints are not sufficient.

In early 2011, the authors of this book made a number of recommendations to the Standing Orders Committee’s tri-annual review of the Standing Orders. We proposed amendments to the Standing Orders that might better regulate the urgency power.11 Shortly before this book went to press, the Committee reported to the House.12 It accepted that there was a need for better regulation of the urgency power and it agreed with some (but not all) of our recommendations for how to do so. The House has adopted the Committee’s proposed amendments to the Standing Orders, and they will be in force when the House sits following the November 2011 election.13

This is a welcome development but does not, in our view, go far enough. In particular, the new package of reforms does not alleviate significant concerns about the extent to which urgency can be used to eliminate the select committee stage of legislative consideration. Perhaps the most troubling data produced by our study relate to the failure of MMP – at least during the forty-fifth and forty-ninth parliaments (1996–1999 and 2008–2011) – to act as an effective constraint on this type of urgency. In our view, a major cultural shift is needed in order to diminish reliance on this particular practice. The Standing Orders Committee’s somewhat cautious package of recommendations is unlikely to achieve that shift.

These points are developed in the account that follows. In the rest of this introductory chapter, we begin by discussing our methodology and the data that we have relied on, before offering an overview and summary of our main findings. Finally, we leave the reader with 10 principles of good law-making that, if respected by parliaments when making laws, will maximise the chances of achieving high quality legislative outcomes. These principles serve as markers, which we will use in later chapters to test our empirical findings on the use of urgency and its implications for New Zealand democracy.

I Methods and Data

At the outset we realised that we needed a mixed method approach to understanding the use of urgency, using both quantitative and qualitative methods.14 In the absence of full statistical data on the topic, we needed to design databases that mapped how urgency was used through time. Without this information we could not know how frequently urgency was used, for what stages of the legislative process, by which governments and under which circumstances. Statistical data, however, would provide only part of the story, albeit a crucial part. Interviews with participants in the legislative process were essential to fill in the full context and provide an understanding of the culture around the use of urgency.

At the heart of this project, therefore, were two empirical research exercises: the creation of statistical databases mapping the use of urgency across time; and in-depth interviews of participants in the political system. Vital primary sources for the study included the New Zealand Parliamentary Debates, the Journals of the New Zealand House of Representatives, the Schedule of Legislation, the Standing Orders of the House of Representatives, the Standing Orders Committee’s reports on its periodic reviews of the Standing Orders, and the Speakers’ Rulings. In addition to providing the source material for the databases, these official records provided information and context – on, for example, the stated reasons for moving urgency, the substance of the bills to which urgency was accorded and the reasons for changes over time to the regulatory framework.

A snapshot approach (perhaps examining the use of urgency during just one parliamentary term) clearly would have been inadequate. Given that one of the goals of the research was to compare the use of urgency before and after the introduction of MMP, we needed to adopt a longitudinal strategy. The data, and the narrative, needed to include examples of both pre-1996 and post-1996 parliamentary terms. On the other hand, there is a limit to how far back statistical comparisons can usefully be made. The 1985 review of the Standing Orders brought in significant changes to the rules governing urgency, rendering statistical comparisons with the use of urgency prior to that date of little benefit.15 For that reason, our story begins at the start of 1987 and ends at the conclusion of 2010.16

The 1987–2010 time period included three terms of parliaments elected under the simple plurality, single-member constituency electoral system. During that time there were two single-party majority governments and one parliamentary term (1993–1996) that saw a range of types of government. Labour held the treasury benches between 1987 and 1990 – its second parliamentary term after being elected in 1984. National defeated Labour in the 1990 general election and, like its predecessor, governed for the ensuing parliamentary term with an easy majority. In 1993, the year of the binding referendum that brought in MMP, National was very narrowly returned to power but lost its majority the following year.

Since that time, there have been no single-party majority governments in the New Zealand Parliament. National, supported by independents and minor parties, led the government until the 1996 general election.17 Between 1996 and 2010, New Zealand was governed by both National- and Labour-led governments with a range of minority and coalition arrangements. Thus, the study includes four full parliaments elected under the MMP rules and one further parliament that had one year to run before the 2011 general election.

A fuller account of the government arrangements during the 24 years of the study is set out at the end of this chapter as Table 1.1.

A The Statistical Data

We created two databases, documenting every use of urgency by the New Zealand House of Representatives between the years 1987–2010. The first and smaller database (the motions database) contains all but one of the 222 urgency motions moved in the House between 1987 and 2010. The urgency motion that we did not include was a motion from 1996 in which none of the items of business to which urgency was accorded were bills.18 Although, as will be explained in Chapter Two, urgency can be sought in relation to any item of business before the House, this study focuses exclusively on the most common usage – to advance the progress of legislation.

In the period studied, there were eight extraordinary urgency motions. The phenomenon of extraordinary urgency – which enables the House to sit through the night – is explained in Chapter Two. In order to maintain the technical distinction between extraordinary urgency motions and (regular) urgency motions, we did not include the extraordinary motions in the urgency motions database. In succeeding chapters, the phenomenon of extraordinary urgency is analysed separately, as and where appropriate.19

The second and larger database (the legislation database) includes the details of all bills to which either urgency or extraordinary urgency was accorded between 1987 and 2010.20 This produces a different (and much higher) figure because one urgency motion may contain a number of different items of legislative business (that is, it may comprehend a number of separate bills). The 222 urgency motions and eight extraordinary urgency motions collectively dealt with 1953 items of legislative business, relating to 1608 bills. The reason for the variation between the number of bills and the items of legislative business is that some bills were accorded urgency on more than one occasion (for different stages of the legislative process). This means that some bills appear as an item of business in more than one urgency motion.21

Although the total number of bills that were accorded urgency between 1987 and 2010 was 1608, only 830 bills were introduced to the House between 1987 and 2010, and accorded urgency at some stage. This is because sometimes bills are divided or split after introduction into more than one enactment (indeed, in some circumstances, multiple enactments).22 The figure of 1608 total bills accorded urgency during the period of the study includes both the 830 “bills introduced” and an additional 767 bills that were created at a later point, when a parent bill was divided or split.23

Bills often take more than one year to proceed through the House and, as noted above, can be accorded urgency more than once during that time. However, in order to produce figures and tables that reflect the changing use of urgency across time, each bill that has been accorded urgency must be assigned to a particular year. The obvious choices are either the year of introduction or the year of enactment. While there are difficulties with either approach,24 we have preferred to assign bills to the former.25 There are two reasons for this. The first is that, if the enactment date is used, one large bill that is divided into many can radically distort the data. Alternatively, if the enactment date is used but divided bills are eliminated, then an initial bill that has subsequently been divided would not be represented in the sample at all.

The second reason is that the government that has introduced the bill is likely to be the one most closely identified with the legislation. Accordingly, it seems most appropriate to attribute the use of urgency to that government.

Despite the advantages of the above method of assignment, it does also have drawbacks. One is that it results in an abridged collection period for bills introduced to the House during the final few years of the study. This is because urgency shows up on the graphs, not in the year that it is taken, but in the year that the bill to which it relates was introduced. If the study had continued to collect data for the final year of the 2008–2011 parliamentary term, the figures for “bills introduced” in 2008–2010 would have increased to reflect occasions on which bills that were introduced during those years were accorded urgency during the course of 2011.

The collation and analysis of raw data on the use of urgency was complex for a number of reasons, including the relative frequency with which some form of urgency was taken and the length of the time period for which the data was collected. In particular, changes to the Standing Orders throughout the period meant that a number of bills included in the database straddled different versions of the Standing Orders for different parts of their consideration by the House. Another major challenge in recording data on the use of urgency is the peculiarity of date recording when the House sits under urgency. The House is considered to have one continual sitting day once it enters urgency, even if it actually sits under urgency for a number of calendar days.26

A full account of the methodology adopted and the effect of these complexities on the gathering, recording and analysis of the data is available on request and will eventually be published on the New Zealand Centre for Public Law website.

B The Interviews

The second prong of the empirical research consisted of interviews with 18 current and previous members of Parliament and senior parliamentary officials on their experiences and perceptions of the use of urgency both before and after the introduction of MMP. One further person, Richard Prebble, was not able to be interviewed in person but provided us with written answers to the questions posed through an exchange of emails. Appendix A lists the names of interviewees and the topics covered in the interviews.

The interviews were taped and then transcribed.27 Although some of the interviews were conducted by two or three of the researchers, research fellow Polly Higbee interviewed all of our participants, thereby helping to ensure that the interviews were conducted in as uniform a manner as possible. Having said that, as is usual with elite and in-depth interviewing, the interviews were conducted with a degree of flexibility in order to account for the fact that different experiences lead to different observations.28

The interviewees were selected on the basis of their representativeness across the pre- and post-MMP periods, in terms of the roles that they had played in the legislative process and in terms of their political affiliations. The interviewees collectively had careers spanning the full 24-year period under study and beyond, and had fulfilled a number of parliamentary roles: Speaker; junior or senior whip; Leader of the House; minister; and Clerk of the House. We spoke with past and/or current parliamentary members of the following parties: Labour, National, ACT, the Māori Party, the Green Party, and United Future.29

We asked interviewees whether they would agree to attribution of their disclosures or whether they would prefer to speak in confidence. All interviewees indicated that they were happy for some or all of the content of the interviews to be attributed. All transcripts were sent to the interviewees for their approval. Minor corrections only were requested and made.

Interviewees were asked a range of questions concerning the roles that they themselves played (or were playing) in relation to the use of urgency motions. In addition, they were asked about their perceptions of the way that urgency had been used by governments, past and present, the reasons for its use, the constraints that exist (or existed) upon its use and the legitimacy of its use.

II Overview and Summary

If this book is to achieve nothing else, we hope that it will contribute to better public understanding of urgency and its impacts on the legislative process. In Chapter Two, we explain how urgency works. In brief, urgency is a mechanism by which governments can engineer an ad hoc extension to the House’s sitting hours and can prioritise certain items of business within those hours. Urgency motions require the House to sit for longer hours, and can require it to sit on days that it would not normally sit. Urgency also enables the government to dictate the business that the House will progress during those hours.

Some additional (and significant) impacts of urgency have already been adverted to above. Although this does not happen in every case, urgency enables governments to dispense with the prescribed stand-down periods between the different stages of the legislative process and/or to dispense with the select committee stage in its entirety. In this way, urgency motions can be a means to reduce the level (and quality) of scrutiny that particular bills receive and, thus, to fast-track particular laws through the legislative process.

We explain these impacts in more detail in Chapter Two. Additionally, we trace aspects of the historical, thematic, comparative and cultural context in which the modern urgency motion operates. Importantly, we introduce the central motif of scarce parliamentary time. We set out the broad contours of the debate over parliamentary time and we familiarise the reader with the range of techniques that legislatures, both in New Zealand and elsewhere, deploy in order to manage and apportion their limited sitting hours.

In Chapter Three, we turn to the question why governments use urgency. In short, there are multiple interlocking reasons. Some of these relate to a genuine need to expedite the passage of particular legislation and some relate to perceived tactical advantages to be gained, in certain situations, from putting the House into urgency. Additionally, though, urgency is driven by a more general perception that the House has insufficient regular sitting hours to get through government business. Governments often take urgency to make progress with their legislative programmes generally, rather than because any particular piece of legislation genuinely needs to be fast-tracked.

No doubt because of the range of interlocking advantages that governments can gain by putting the House into urgency, the urgency motion has proved to be a resilient feature of the New Zealand legislative process, employed by governments of all stripes over the course of many decades. In Chapter Four, we present and discuss the bulk of our statistical data on the use of urgency. We have already seen that, during the 24 years of our study, urgency was used a great deal – in relation to nearly 2000 items of legislative business, pertaining to more than 1600 bills. The use of urgency was not, however, distributed evenly across various parliaments and governments, and there was a marked difference between the periods of highest and lowest use. We explore these variations in Chapter Four by mapping the use of urgency across time (by year and by parliament). In order to dig more deeply into the data, we also analyse the different ways in which urgency was used (for example, we provide separate analysis of the occasions on which urgency was used to avoid select committee scrutiny). Finally, Chapter Four also documents seasonal variations in the use of urgency (at different times of the year or different times of the electoral cycle) and provides a breakdown of the policy areas accorded urgency.

The data presented in Chapter Four provide the foundations for a more extended analysis, located in the following chapter, of the impact of proportional representation on the use of urgency. These data show that MMP had a profound impact on the use of urgency, as well as on the cultural norms that operate when urgency is taken. That said, the pattern of use of urgency following the introduction of MMP was not even. In particular, two post-MMP parliaments stand out for the comparatively high use of urgency motions: the forty-fifth Parliament (1996–1999) and forty-ninth Parliament (2008–2011). These parliaments also stand out for the highest use, during the entire period of the study, of urgency to avoid select committee scrutiny.

It seems, then, that not all minor parties have availed themselves of the opportunities produced by their potential bargaining positions in the MMP Parliament and that the constraint imposed on the use of urgency by the multi-party environment is sometimes weak or even absent. In Chapter Five, we consider why that is so. In order to account for the impact of multi-party parliaments on the use of urgency, we look beyond the formal designation of governance arrangements (for example, majority coalition versus minority) to a complex list of factors, including the particular makeup of the governing majorities, the personalities of key figures (such as the Prime Minister), the ideological perspectives of support parties and the people who comprised them, and the overarching support arrangements that were entered into.

Also in Chapter Five, we consider a range of other factors that can and, on occasion, do constrain excessive uses of urgency – most especially, the role of the opposition, and the role of the media and public opinion. But here, too, the effect of these constraints is somewhat erratic and unpredictable. Importantly, the ultimate constraint on political behaviour – the ballot box – does not always operate effectively in the case of urgency. The media may sometimes take an interest in the fact, or perceived fact, that Parliament is “ramming through” legislation but the occasions on which it does so are irregular and not always well-informed. The public has a limited interest in, and an even more limited understanding of, parliamentary procedure – a matter that, we suggest, is not assisted by the confusing regulatory framework in which urgency operates. A particular problem in this regard is the hybrid role played by urgency as both a general “overtime” mechanism and as a device for expediting particular legislative proposals (by removing stand-down periods and/or eliminating select committee scrutiny). This can result in “urgency” sometimes attracting negative public attention in relatively benign circumstances – when all that has happened is that the House has decided to sit for slightly longer hours. On the other hand, the frequency with which urgency is taken, and the sheer number of bills to which urgency is accorded, may serve to camouflage its more democratically troubling uses (for example, to bypass select committee scrutiny).

All of this raises the question whether further regulation is required. That depends, to a large extent, on whether one considers that the use of urgency is something to be avoided. Our interviews indicate that many politicians do not take that view. They see urgency as a valid procedural device for extending the House’s sitting hours and pushing forward with the government’s legislative programme. Their concern is that there are insufficient scheduled sitting hours for the House to get through government business and they view urgency as a legitimate device for ameliorating this problem.

In Chapter Six, we consider whether or not we agree. We begin by tackling the perceived problem of insufficient legislative capacity, which is a significant driver for the use of urgency. The wide-ranging and multi-faceted debate over parliamentary time that underlies this perceived problem demands far more comprehensive examination than this focused study on the use of urgency can provide. Nevertheless, in Chapter Six, we sketch in more detail the dimensions of that debate and we also consider a package of relevant recommendations, made by the Standing Orders Committee in its 2011 review of the Standing Orders, to streamline the House’s business and free up additional legislative capacity.30 Those recommendations (released shortly before this book went to press) were adopted by the House and will be in force when Parliament meets following the November 2011 election.31

The reason for our dalliance into the broader debate over parliamentary time is to underscore one point: if there is a problem with insufficient capacity in the House to progress the government’s legislative business, there are a range of reforms that could be investigated to address that problem. For the purposes of this study, however, the key point is this: reliance on urgency to address the perceived problem of insufficient legislative capacity is undesirable. We explore that proposition in Chapter Six by evaluating the use of urgency against the yardstick of 10 principles of good law-making (which are first set out later in this chapter). We conclude, on the basis of those 10 principles, that any use of urgency comes at a cost to the integrity of the legislative process. That cost may be higher or lower depending on the circumstances. For example, it is likely to be higher when urgency is used to bypass select committee scrutiny and lower when urgency is taken for only one stage of a bill (and, therefore, does not interfere with the stand-down periods between the legislative stages). Even relatively benign uses of urgency, however, contribute to a public perception – whether fair or not – that Parliament is not following its own rules and that legislation is being “rammed through” the House at the will of the executive.

This does not, of itself, mean that the use of urgency is always inappropriate. There will always be situations in which the benefits outweigh the disadvantages. However, in our view, reliance on urgency as a mechanism to address the perceived problem of insufficient legislative capacity is undesirable. Further, there is a need for effective disincentives against it being used too much or in the absence of appropriate justification.

In our view, the current constraints (explored in Chapter Five) are insufficient. In the final chapter, we consider what might be done about this. In early 2011, the authors of this study made a submission to the Standing Orders Committee.32 We put forward a package of reforms, designed to prise apart “overtime” (when the House simply decides to sit for longer) from “urgency” (when the House wants to fast-track particular bills) and to improve the incentives for governments to limit reliance on the latter to genuinely urgent situations. For the most part, our proposed reforms sought to enhance the political sanctions for the use of urgency, and accepted as their underlying premise that the justifiability of urgency in any particular case is a political question. In the case of urgency to eliminate the select committee stage, however, we went further. We suggested that the time had come to accord a role to the Speaker in approving this form of urgency (a role that the Speaker already plays in relation to extraordinary urgency).

In Chapter Seven, we document our recommendations to the Standing Orders Committee and the Committee’s response to them, as reflected in its report on the 2011 review of the Standing Orders (now adopted by the House).33 The Committee accepted the general thrust (but not the detail) of two of our recommendations: to introduce a separate “extended sitting” power into the Standing Orders; and to require greater specificity in the reasons given in urgency motions. Both of these reforms are to be welcomed, as is the broader acknowledgement in the Committee’s report that the use of urgency can detract from the reputation of Parliament.

Nevertheless, for reasons analysed in Chapter Seven, the Committee’s recommendations were, in other respects, disappointing. Most regrettably, the Committee resisted calls to place special controls around the most troubling use of urgency – to eliminate select committee scrutiny. The importance of the select committee stage in New Zealand’s unicameral legislative process, together with worrying data from our study on the overuse of this type of urgency during some recent parliamentary terms, make more effective regulation of this type of urgency a matter of pressing concern. In our view, a major cultural shift is required in relation to this type of urgency, and we doubt that the reforms instigated as a result of the 2011 review will be sufficient to engineer that shift.

For this, and other reasons, a further round of reforms to the Standing Orders may need to be contemplated in the near future. In Chapter Seven, we suggest what these may be.

III The Principles of Good Law-Making

In a 2009 report on expedited legislation, the House of Lords Select Committee on the Constitution identified five constitutional principles that should “underpin the consideration of fast-track legislation”. These concerned: “effective parliamentary scrutiny”; maintaining “good law”; “providing interested bodies and affected organisations with the opportunity to influence the legislative process”; ensuring that legislation is a “proportionate, justified and appropriate response to the matter in hand and that fundamental constitutional rights and principles are not jeopardized”; and the “need to maintain transparency”.34

These principles are as relevant to New Zealand as they are to the United Kingdom but, in our view, could helpfully be expanded. Drawing on the House of Lords’ suggestions, we end this introductory chapter by setting out 10 principles, against which to evaluate the use of urgency. We note that there is some overlap among the various principles and that they relate just to the House’s legislative role, not to its other functions.

We do not examine here the extent to which urgency implicates or offends these 10 principles – that is reserved for discussion in Chapter Six. Nevertheless, it is helpful to set these principles out at this early stage so that the reader can bear them in mind throughout the succeeding analysis.

A The Ten Principles

1 Legislatures should allow time and opportunity for informed and open policy deliberation

Public, full and open policy deliberation is an important democratic principle. In systems of representative democracy, with laws made by elected representatives rather than by citizens, it is vital that political representatives articulate the arguments for and against bills. One of the key justifications for democratic deliberation is that, through debate, people provide reasons for their actions.

The media are part of this process of democratic deliberation, relaying, interpreting and criticising policies.35 Additionally, the growth of non-mediated communication (for example, social networking sites) means that citizens can also have direct access to the deliberations of their MPs.

2 The legislative process should allow sufficient time and opportunity for the adequate scrutiny of bills

Providing effective scrutiny of the government, including the government’s legislative agenda, is one of the House of Representatives’ constitutional functions.36 In order to fulfil this role, opposition MPs need to question ministers, examine bills closely and listen to expert and citizen advice. In New Zealand’s unicameral system, there is no second house to assist with this scrutiny function and so there must be adequate opportunities for it to take place as legislation proceeds through the single chamber. Select committee examination of bills and the orderly progression of bills through the House enable MPs to perform their scrutiny role.37

It is vital to a healthy democracy that minority and opposing voices have the opportunity to express their views on bills. Her Majesty’s Loyal Opposition is a significant part of New Zealand’s constitutional arrangements, as in other Westminster systems, and plays a particularly important role in the scrutiny of legislation. As noted by Wheare:38

[I]n the legislature itself, though government supporters may grumble behind the scenes and occasionally in public, it is the members of the Opposition who are charged with the duty of examining and criticising what the government has done and proposes to do.

3 Citizens should be able to participate in the legislative process

All citizens should be able to participate in and attempt to influence the legislative process – whether directly or indirectly.39 Indirect participation is facilitated when minority rights are respected in the House. Minority parties – those that are not part of the government – need to have opportunities to express their views, opinions and criticisms.

Direct participation may involve citizens (individuals and groups) lobbying MPs directly, or taking the opportunity to influence bills during the select committee process.40 Opportunities for direct involvement are particularly vital for members of minority groups whose views may not be represented by the parliamentary parties.41

All participants need time to consider the implications and details of bills and to work within their organisations to produce informal and formal submissions to ministers, MPs and select committees.

4 Parliaments should operate in a transparent manner

Transparency is a democratic value in its own right.42 MPs and citizens alike depend on the legislative process being conducted in an open and accessible way, with government intentions made public so that all the relevant issues and implications of bills can be considered carefully. Bills should proceed at a measured pace through the legislature and there should be opportunity for submissions through committee consideration of bills. These submissions should be heard publicly wherever possible. The public nature of the legislative process also allows the media to report on parliamentary proceedings.

5 The House should strive to produce high quality legislation

A key role of the New Zealand Parliament is to make good law. In New Zealand, that responsibility falls on the House of Representatives because no other body, such as an upper house or judges (except indirectly), can improve it. The quality of legislation can be detrimentally affected by: (a) inadequate and abbreviated pre-introduction scrutiny; (b) insufficient time for MPs to give bills adequate consideration; or (c) insufficient time for the public, including expert submitters, to provide advice, feedback and new ideas.43

6 Legislation should not jeopardise fundamental constitutional rights and principles

One of the principles enunciated by the House of Lords in its report on fast-tracking legislation was that legislation should be a “proportionate, justifiable and appropriate response to the matter in hand and that fundamental constitutional rights and principles [should not be] jeopardised”.44 Some commentators have suggested that the New Zealand Bill of Rights Act 1990 in fact places a substantive obligation on Parliament not to trench on the rights protected in that instrument.45 Others would say that legislative breaches of fundamental rights offend the rule of law.46 Still others would say that there is a constitutional convention that Parliament does not legislate for “tyrannical or oppressive purposes”.47 Although each of these characterisations may, in itself, be controversial, few would disagree with the bare proposition that legislation should not trench on constitutional rights or principles without justification. The more that legislation affects individual and group rights, the more important it is that it is accorded due process and is carefully considered.

7 Parliaments should follow stable procedural rules

Leaving aside the situations that truly need an immediate legislative response, most law-making should be conducted according to Parliament’s regular (not exceptional) procedural rules. This is conducive to a stable policy-making environment. In New Zealand, the House of Representatives may change its rules “but the House has recognised that when playing its part in making law it ought to act according to a more deliberate set of procedures than when enacting other business.”48

8 Parliament should foster, not erode, respect for itself as an institution

Following due process and regular legislative stages helps maintain respect for parliaments, parliamentarians, and the bills that become law. The fact that correct procedures have been followed helps the courts and the community to accept statutes as binding and as the highest form of law.49

9 The government has a right to govern, so long as it commands a majority in the House

Under New Zealand’s parliamentary system of government, with its partial fusion of the executive and the legislature, governments ultimately have the right to implement their policy programmes through legislation. Respect for this principle, however, has to be balanced against the others outlined here.

10 Parliament should be able to enact legislation quickly in (actual) emergency situations

We need our governments to be responsive. For that reason, legislatures need rules that allow normal processes to be bypassed in exceptional situations.

B Conclusion

The democratic and constitutional principles explained above provide high normative standards against which the use of urgency in the New Zealand House of Representatives can be judged. We return to such an assessment in Chapter Six after, first, reporting on and analysing our empirical findings.

Next, though, we turn to consider in more detail what urgency is and how it works.

Table 1.1: Parliaments and Governments 1987–2010

Image

1 See <www.parliament.nz>.

2 David Farrar, “Use of Urgency” (13 April 2011) <www.kiwiblog.co.nz>; Grant Robertson, “Urgency – Some Real Information” (12 April 2011) <blog.labour.org.nz>.

3 See, for example, “Bulldozed Rush of Legislation Makes Mockery of Democracy” in The New Zealand Herald (14 December 2008); Claire Trevett, “National’s List of Laws Passed under Urgency” in The New Zealand Herald (14 April 2011); Tracy Watkins, “Urgency Erodes Right of Scrutiny” in The Dominion Post (16 April 2011).

4 For a similar observation in the United Kingdom context, see House of Lords Select Committee on the Constitution, “Fast-Track Legislation: Constitutional Implications and Safeguards” (HL Paper 116-I, 2009) at 6.

5 Two exceptions to this are data published by Ryan Malone, contrasting the use of urgency during three periods of 109 sitting days under first-past-the-post government, MMP coalition majority government and MMP minority government (Ryan Malone, Rebalancing the Constitution: The Challenge of Government Law-Making under MMP (Institute of Policy Studies, Wellington, 2008) at 205–212); and the data jointly published by Farrar and Robertson on use of urgency between 1999 and 2010 (David Farrar, “Use of Urgency” (13 April 2011) <www.kiwiblog.co.nz>; Grant Robertson, “Urgency – Some Real Information” (12 April 2011) <blog.labour.org.nz>).

6 For discussion of how this narrative about House time, executive dominance and parliamentary control played out in battles over parliamentary procedure during the nineteenth and early twentieth centuries, see: John E Martin, “From Talking Shop to Party Government: Procedural Change in the New Zealand Parliament, 1854-1894” (2011) 26 Australasian Parliamentary Review 64; John E Martin, “A Shifting Balance: Parliament, the Executive and the Evolution of Politics in New Zealand” (2006) 21 Australasian Parliamentary Review 113.

7 Lesley Zines, Constitutional Change in the Commonwealth (Cambridge University Press, Cambridge, 1991) at 47.

8 Geoffrey Palmer, New Zealand’s Constitution in Crisis: Reforming our Political System (John McIndoe, Dunedin, 1992) at 1.

9 See, for example, George Tsebelis, “Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism” (1995) 25 BJ Pol S 289.

10 See, especially, Chapter Five.

11 Claudia Geiringer, Polly Higbee and Elizabeth McLeay, “The Urgency Project: Revised Submission to Standing Orders Committee” (2011).

12 Standing Orders Committee, “Review of Standing Orders” [2011] AJHR I.18B [“Standing Orders Review 2011”].

13 (5 October 2011) 676 NZPD 21758–21765.

14 See Melvyn Read and David Marsh, “Combining Quantitative and Qualitative Methods” in David Marsh and Gerry Stoker (eds), Theory and Methods in Political Science (2nd ed, Palgrave McMillan, Basingstoke, 2002) 231.

15 See Chapter Two, Part I.

16 1987 was the first year in which almost all of the legislation being processed by the House under urgency had been introduced to the House under the new rules.

17 See Jonathan Boston and others, “Experimenting with Coalition Government: Preparing to Manage Under Proportional Representation in New Zealand” (1997) 35 Journal of Commonwealth and Comparative Politics 108 at 110.

18 This was the only urgency motion passed in 1996.

19 See, for example, Chapter Two, Parts II and III.A.2; Chapter Three, Parts I and II.A.1; Chapter Four, Part III; Chapter V, Part I.

20 Any reference to bills includes government bills, members’ bills, local bills and private bills.

21 For example, of the 830 bills that were introduced during the period of the study and accorded urgency at some stage, 272 were accorded urgency on more than one occasion.

22 See Chapter Six, Part I.B.2 for discussion of “omnibus bills”, which are the most common situation in which this occurs.

23 Eleven bills that were introduced prior to 1987 (but accorded urgency within the period studied) were captured in the data collection but are not included in the graphs and tables in this document because they fell outside of the date range for our data analysis.

24 See, for example, David McGee QC, “Concerning Legislative Process” (2007) 11 Otago LR 417 at 418–419 [“Concerning Legislative Process”]; George Tanner QC, “Confronting the Process of Statute-Making” in Rick Bigwood (ed), The Statute: Making and Meaning (LexisNexis, Wellington, 2004) 49 at 105–106.

25 Compare the following two sources, which adopted the yardstick of bills enacted: Malone, above n 5, at 202–205; McGee, “Concerning Legislative Process”, above n 24, at 418–419 and 431.

26 See Chapter Two, Part III.A.1.

27 The transcripts will be lodged in due course in the Alexander Turnbull Library.

28 The classic text is Lewis Anthony Dexter, Elite and Specialized Interviewing (Northwestern University Press, Evanston, Illinois, 1970). See, also, Janet Buttolph Johnson and Richard A Josling, Political Research Methods (3rd ed, Congressional Quarterly Inc, Washington DC, 1995) at 262–265.

29 We were unable to arrange an interview with a member of New Zealand First.

30 “Standing Orders Review 2011”, above n 12.

31 (5 October 2011) 676 NZPD 21758–21765.

32 Geiringer, Higbee and McLeay, above n 11.

33 “Standing Orders Review 2011”, above n 12.

34 House of Lords Select Committee on the Constitution, above n 4, at 8.

35 Richard Mulgan, Politics in New Zealand, updated Peter Aimer (3rd ed, Auckland University Press, Auckland, 2004) at 288–289.

36 David McGee QC, Parliamentary Practice in New Zealand (3rd ed, Dunmore, Wellington, 2005) at 4.

37 See Mulgan, above n 35, at 124–128.

38 K C Wheare, Legislatures (Oxford University Press, London, 1963) at 118.

39 See, for example, Philip Parvin and Declan McHugh, “Defending Representative Democracy: Parties and the Future of Political Engagement in Britain” (2005) 58 Parliamentary Affairs 632 at 632. Broadly speaking political participation can be justified either in terms of its individual personal benefits (education about politics, identification with the polity and so forth) or through an instrumental justification, in terms of the different views and ideas that citizens can bring to the decision-making process: see David Held, Models of Democracy (3rd ed, Polity Press, Cambridge, 2006) at 231.

40 See Tim Barnett and Polly Higbee, “Engaging in the Future: Overcoming the Limitations of Parliamentary Representation” (2009) 24 Australasian Parliamentary Review 61 at 67–70; Mulgan, above n 35, at 124–125.

41 Barnett and Higbee, above n 40, at 62.

42 See, for example, International Institute for Democracy and Electoral Assistance, “Basic Principles and Mediating Values” <www.idea.int>; Consultative Steering Group on the Scottish Parliament, “Shaping Scotland’s Parliament” (December 1998), Section 2.2; House of Lords Select Committee on the Constitution, above n 4, at 8.

43 See, for example, Mulgan, above n 35, at 121–122.

44 House of Lords Select Committee on the Constitution, above n 4, at 8.

45 Contrast Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at 87–89; with Claudia Geiringer, “The Dead Hand of the Bill of Rights? Is the New Zealand Bill of Rights Act 1990 a Substantive Legal Constraint on Parliament’s Power to Legislate?” (2007) 11 Otago Law Review 389.

46 See, for example, Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” [1997] PL 467, which compares “substantive” conceptions of the rule of law of this kind with more procedural or formal conceptions. The latter would not regard intrusions on human rights as offending the rule of law per se.

47 See the discussion in Philip A Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, Thomson Brookers, Wellington, 2007) at [8.5.2].

48 David McGee, “The Legislative Process and the Courts” in Philip A Joseph (ed), Essays on the Constitution (Brookers, Wellington, 1995) at 86 [“The Legislative Process and the Courts”].

49 McGee, “The Legislative Process and the Courts”, above n 48, at 86.

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